How Trump’s Defense Is Coming Together

Trump’s lawyers prepare two lines of defense, while Republicans in Congress mull their next move. It’s Wednesday, and this is your politics tip sheet. Sign up here to get On Politics in your inbox every weekday.

Where things stand

Former President Donald Trump’s legal team plans to mount a two-pronged defense when the Senate hears his impeachment trial next week, according to a 14-page filing submitted yesterday.

Trump’s lawyers denied that his statements in advance of the Capitol riot on Jan. 6 amounted to an incitement of violence. But they also argued that the whole case was moot, saying that the Senate lacked the authority to try a former president.

In the filing, the lawyers did not repeat or seek to defend Trump’s baseless claims that the November election had been “stolen” from him and marred by widespread fraud, as the former president had reportedly hoped they would. Instead, it fell back on a First Amendment defense, saying that Trump had been exercising his right to “express his belief that the election results were suspect.”

The filing — which was submitted just days after Trump reshuffled his legal team, and appeared to have been hastily assembled — also said that the Constitution disallowed the Senate from trying a former president after he has left office. This argument has been disputed by many constitutional scholars, and it runs counter to history: During Ulysses S. Grant’s administration, the Senate tried a cabinet official on impeachment charges after he had left office.

In their own 80-page pretrial brief filed yesterday, the House’s Democratic impeachment managers, who will prosecute the case in the Senate, rejected that constitutional argument. They also argued that Trump bore direct responsibility for the attack on the Capitol.

“President Trump has demonstrated beyond doubt that he will resort to any method to maintain or reassert his grip on power,” wrote the managers, led by Representative Jamie Raskin of Maryland. “A president who violently attacks the democratic process has no right to participate in it.”

This is all unfolding amid a broader moment of reckoning for the G.O.P. And it goes well beyond the question of whether to convict Trump. The party’s leaders in the House will meet today to discuss the fates of two lawmakers who represent opposing sides in their party’s search for a coherent identity in the wake of Trump’s presidency.

Under the microscope are Representatives Liz Cheney of Wyoming and Marjorie Taylor Greene of Georgia. Cheney, the chamber’s No. 3 Republican, broke with most members of her caucus in two significant votes last month: She voted to certify the results of the November election, rejecting Trump’s falsehoods about election fraud, and then she joined only nine other House Republicans in voting to impeach him.

Greene, whose first term began last month, is an unswerving Trump ally with a history of endorsing conspiracy theories and bigotry, even going so far as to express support for the killing of Democratic leaders. A number of Republicans have joined Democrats in condemning Greene’s past statements, including her former support for the QAnon conspiracy theory (which she recently disavowed).

Yesterday the Democratic Congressional Campaign Committee began a $500,000 ad campaign tying eight House Republicans, including Representative Kevin McCarthy, the minority leader, to Greene and QAnon — a sign of Democrats’ intention to use the radical views of representatives like Greene to cudgel the Republican Party as a whole.

Senator Mitch McConnell, the Republican leader, put his thumb on the scales this week when he issued two separate statements: one condemning Greene (without actually naming her) and another praising Cheney for her “deep convictions and courage.”

But even McConnell himself voted last week against hearing Trump’s impeachment in the Senate. It was a sign that, despite his fears about the former president’s continued power over the party’s future, he recognizes that the G.O.P.’s bloodstream remains so thoroughly permeated by Trump that it now may be impossible to purge his influence without doing mortal damage to the party itself.

For McCarthy, who will preside over the meeting today, the calculation is even more difficult. He criticized Trump for his role in inciting the Capitol riot but has since tacked back toward a more accommodating position.

Last week, McCarthy traveled to Florida to meet with Trump and discuss the party’s 2022 electoral strategy, an acknowledgment of the former president’s continued sway, as well as of the fact that most Republican-held House districts voted overwhelmingly to re-elect him in November.

Greene has made a point of emphasizing that she still has Trump’s support. She announced over the weekend that she had spoken with him and received his blessing, and on Monday she said she planned to meet with him “soon” in Florida.

President Biden yesterday issued three executive orders turning back some of Trump’s most aggressively anti-immigration policies. The orders aim to reunite migrant children separated from their families at the border, restore the country’s asylum system and make it easier for foreign workers and students to enter the country.

But officials said that the orders were only the first step in a long and complicated process of rebuilding the country’s immigration infrastructure.

Flinging open the borders could lead to a system overload, with thousands of migrants currently living in substandard conditions just across the Mexican border.

And reuniting families will take months, if not years, of work, given the difficulty of determining the whereabouts of people moving across national borders — particularly when they feel threatened by the U.S. government.

“We’re going to work to undo the moral and national shame of the previous administration that literally, not figuratively, ripped children from the arms of their families, the mothers and fathers at the border, and with no plan — none whatsoever — to reunify the children,” Biden said.

Hours earlier, the Senate had voted to confirm Alejandro Mayorkas as secretary of homeland security. Unlike many other members of Biden’s cabinet who have been confirmed, Mayorkas was opposed by most Republicans, with only seven voting to confirm him.

It was a reflection of how polarizing immigration debates have become, after Trump used the issue to drive a wedge between his heavily white base and the rest of the country. Pete Buttigieg, by comparison, was confirmed yesterday as secretary of transportation by a vote of 86 to 13.

Photo of the day

Senator Maria Cantwell of Washington and Pete Buttigieg greeting each other at his confirmation hearing.

How Trump’s ‘deep state’ allies could interfere with Biden’s immigration agenda.

By Michael D. Shear

Former President Donald Trump often complained about what he called a “deep state” inside the government working to thwart his agenda.

But now, as Zolan Kanno-Youngs and I report in a new article, President Biden is already encountering pockets of internal resistance, especially at the agencies responsible for enforcing immigration laws — where the gung-ho culture has long favored Trump’s get-tough policies.

“There are people in ICE that agree with Trump’s policies,” said Thomas Homan, a blustery immigration hard-liner who served as Trump’s acting director of Immigration and Customs Enforcement. “They want to do the job they took an oath to do.”

Biden campaigned on overhauling the government’s immigration agencies, and tension is already brewing between the new president and those at the Homeland Security Department, which includes ICE.

Videos celebrating Trump’s “big, beautiful” border wall are still featured on the Customs and Border Protection website. And the union representing ICE agents — whose leadership enthusiastically supported Trump — has signaled that it does not intend to accept all of the new administration’s reversals of the former president’s policies.

Aaron Reichlin-Melnick, the policy counsel for the American Immigration Council, which advocates on behalf of immigrants, said that after “four years of a newly empowered and politicized work force,” ICE and Customs and Border Protection agents were “more likely to push back against an incoming administration than in the past.”

The emergence of an emboldened resistance inside the Biden administration is not limited to the homeland security agencies. Pockets of government employees loyal to Trump and his agenda remain ensconced in other parts of the bureaucracy.

Still, Stephen Miller, the architect of Trump’s immigration overhaul, said, “It’s going to be most intense at D.H.S.”

Homan predicted that some in the bureaucracy would seek to undermine the new president by leaking documents, something that is already happening. Shortly after Biden’s Homeland Security Department issued a memo establishing new enforcement priorities and pausing deportations, an internal email sent to an ICE field office in Houston ended up on Fox News.

The email, which suggested that some immigrants in custody should be released, set off a firestorm in the conservative news media. (Biden has not issued a directive to release immigrant detainees.)

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